. . . recording calls or meetings, even if legal in your state, is probably cause for getting fired at work?

It is common for employees to tell me “I know that it is legal to record a telephone conversation in this state, so I have been recording phone calls and meetings at work, and there is nothing they can do about it.”

That belief is simply and profoundly wrong. These examples should illustrate why:

• It is entirely legal to be drunk in your own home, or in the home of a friend. However, being drunk at work is surely good cause to be fired.

• It is entirely legal to walk around naked at home. However, walking around naked at work is surely good cause to be fired.

• Finally, it is entirely legal to use curse words at home. However, using curse words at work is surely good reason to be fired.

And, so it is with surreptitiously recording of telephone calls or meetings at work. If it is to be done at all, it must be done very quietly, very carefully, and totally discreetly, and not to be mentioned to others.

The seeming increase in employees recording conversations of all kinds at work is, I believe, a reflection of the decrease in trust felt for employers, managers, Human Resources staff, and even colleagues. And, this sense of distrust is being fueled, as well, by what we see between and among our political and other leaders.

Feel distrust at work? I can’t argue with your feelings, but recording conversations or meetings at work is, to my view, more self-defeating than helpful under almost any circumstance you may find yourself in at work.

To read a blog post I have written that provides a more in-depth explanation of tape recording at work, go to “Recording Conversations with Your Boss or HR” What You Need to Know.

Need to send a model memo or letter to make a request or complaint? A good checklist or form agreement? For a complete list of our Model Letters, Memos, Checklists and Sample Agreements, Just [click here.]

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© 2018 Alan L. Sklover. All Rights Reserved and Strictly Enforced.

“Due to the highly confidential nature of my position
even I don’t know what I do all day.”

– Unknown

ACTUAL “CASE HISTORY”: Bart was a highly respected Business Development Officer for a major antiquities dealer headquartered in London. His interests, education and experience all overlapped one another. In fact, he had been fascinated with the antiquities trade – the sale, purchase and barter of ancient artifacts and treasures – as long as he could remember, and remained so to this day.

As part of an expansion of his firm, Bart had been designated to open a new Chicago office because Chicago has a large, vibrant and growing antiquities market. Chicago’s client base, comprised of art institutes, museums and wealthy individuals, was judged to be quite under-served, and so this assignment was posed a significant opportunity for Bart.

Just before relocating with his family to Chicago, Bart was asked to meet with the firm’s Head of Human Resources. Upon arrival, Bart was led to a conference room and asked by the firm’s lawyers about emails he had exchanged six months earlier with an antiquities collector in Rome, who was interested in a particular item of antique jewelry soon to be sold at auction. In his email, the Rome collector asked Bart what he thought would be the minimum acceptable auction bid. Bart’s email response to the Rome collector was that he thought it would be no more than one hundred thousand dollars.

Bart’s estimate of the minimum price was on target, with good reason: it had been decided upon by the firm’s auction department just days earlier, although it had not yet been made public. It now seemed as if Bart was being accused of disclosing confidential information – a very serious policy offense in the antiquities business, which highly prizes secrecy and integrity. Sure enough, Bart was immediately suspended without pay, pending completion of a full investigation by the attorneys. And, too, his relocation to Chicago was placed on hold.

Fortunately for Bart, he had been prudent in preserving emails of others who oversee his work. His review of emails to and from the Rome collector revealed to him that the request was originally sent from the Rome collector to the firm’s Executive Director, who had, in turn, directed it to him, with a note directing Bart to provide that requested estimate. When the Executive Director was asked, and then shown his email to Bart, he then recalled what took place, and for this reason Bart was cleared of the allegation of gross misconduct.

LESSON TO LEARN: Issues of confidentiality of business secrets, confidential information, and proprietary knowledge, are critical career issues. “Loose lips” not only “sink ships,” but they can also “torpedo careers,” as well.

These disputes are definitely on the rise, likely due to three factors: (i) increasingly competitive business conditions, (ii) a growing sensitivity to issues of confidentiality, and (ii) the greater ease and ability of employers’ closing monitoring and surveilling their employees’ communications.

As you may know, there are many companies that sell software that constantly look out for certain words, phrases and numbers in employee emails, texts and other digital communications.

The lessons to learn?

(1) take the time to understand what constitutes “confidential information” at your job;

(2) always keep in the back of your mind the four “situational exceptions” to confidentiality and non-disclosure obligations, explained below; and

(3) take certain simple steps to protect yourself from allegations of improper disclosure.

These three categories of “suggested confidentiality precautions” and – most importantly, the four “situational exceptions” to confidentiality and non-disclosure obligations – are what this newsletter issue is all about.

WHAT YOU CAN DO: To avoid confidentiality issues and pitfalls, keep these questions and answers in mind:
Read the rest of this blog post »

Question: I was recently terminated by a municipal employer for which I am sure they will claim was “cause.” Over the course of my employment I have accumulated significant “leave time” and “comp time” that, under normal circumstances, and according to the Leave Manual would be given to me in a lump sum upon separation. Can they deny me this earned income because I was terminated for cause?

Bruce
New York, New York

Answer: Dear Bruce: As a general rule, all employees must be paid for all time worked. However, there is a fundamental difference between “comp time” and “leave time” when that rule is applied.

1. By federal law all employees (other than executives, professionals and managers) must be paid at an overtime rate (time-and-one-half) after 40 hours of work in a week. The federal Fair Labor Standards Act (often called “FLSA”) requires such “overtime pay.” However, municipal government employees, like yourself, may be offered the option of taking “compensatory time” (often called “comp time”) which is time off instead of the earned overtime pay.

2. By federal and state law, all kinds of payment for work must be paid upon separation; there are only a few exceptions, and “comp time” is not one of them. Employers cannot withhold from workers any compensation of any kind – including “comp time” compensation – upon the employee’s departure. There are a few exceptions; for example, if the employee owes the employer money, that might be a reason not to pay monies earned in order to pay off that debt, so long as the debt in question is a clear and obvious one, not a vague claim. There is no exception for those “fired for cause.” For this reason, you should be paid the overtime pay you earned, or payment for the “comp time” you have accumulated, upon your departure.

3. Leave Time (or Vacation Time) is very different; it is not a form of wages, but rather a benefit that is not required by law. There is no law that requires employers to give employees time off for vacation, or personal leave. These are not considered forms of mandatory “wages,” but rather, these are given to employees as non-mandatory “benefits.” So, no federal or state law requires payment of accumulated leave time upon employee departure.

4. That said, if (a) an employment contract (including a union contract) guarantees you payment of leave time when you leave, or (b) your employer does that as a regular practice, then by “contract law” you have a right to it. “Statutes” are laws passed by Congress or state legislatures that give rights. People also have rights by “contracts” or agreements. If you are party to a contract that guarantees you payment of leave time when you leave, such as an employment contract or a union contract, then you must be paid it. In New York, the law says the following: “If your employer has a regular practice of paying people their accumulated leave or vacation time upon departure, then that is considered an ‘implied contract’ that guarantees you that payment, too.”

5. My experience, though, is that almost all employers have a policy that says “If fired for ‘cause,’ you don’t get paid accumulated leave or vacation time.” It is near universal that, upon termination for alleged “cause,” employers give employees only the very bare minimum they are legally entitled to: no severance, no vacation time, and no unvested benefits. My guess is that your employer has such a policy; you need to check with Human Resources.

Bottom line, Bruce, unless you have a contract that gives you more than most employees who are terminated for “cause,” you should be entitled to accumulated comp time, but not accumulated leave time. Some good news, some not-so-good news. “Half a loaf is better than none.”

I hope and trust that, if you do not believe you have committed “cause” to be fired, you will stand up and fight those allegations.

Monies due you (vacation pay, commissions, bonus, wages, expenses, etc.) owed you by former employer? Your best bet is to make a written request. We offer a Model Letter Requesting Monies Due You by a Former Employer. Shows you “What to Say, and How to Say It.”™ To obtain your copy, just [click here.] Delivered by Email – Instantly!

I hope this helps a bit. Thanks for writing in. Good luck in your job hunt!

By the way, tired of all this reading? Rather just sit back, relax, watch and listen? Consider Sklover Videos On Demand. See our Complete List. Just [click here].

Best,
Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.

Question: I work for an apartment management company. My employer is claiming that I was fired for inappropriate texting to a tenant at the apartment complex. I was initially given a suspension pending an investigation. After the investigation report was completed, I was fired.

The employer has no policy about using cell-phones, and no policy against texting. Do I have a case for wrongful termination?

Leonard 
Grand Rapids, Michigan

Answer: Dear Leonard:       

Though it may seem quite unfair to you – and in many ways it is unfair – I don’t see any basis for a lawsuit or other legal claim of any kind.    

1. Unless you have a written contract of employment for a certain period of time, your employment can be terminated for any reason, so long as it is not a reason that is forbidden by law. Certain reasons for terminating an employee are illegal: as three examples, (i) because he or she is of advanced age; (ii) because he or she practices a certain religion; (iii) because he or she has objected to an illegal practice by the employer. The reason given for your employment termination would seem to me not to be one of the “illegal reasons.”
 
2. It makes no difference that no “anti-texting” policy was in place. Employers establish clear written policies on certain matters in order to make sure that employees know “the rules.” They are like clear signs along the highway that tell you “No U-Turn” and “Speed Limit 50 MPH.” Such “clear signs” and written rules help us all prevent “accidents.” But employers can’t be expected to have a “rule” for every situation or circumstance; rather, many situations simply require that employees use good judgment.

3. In my experience, differences of “personal judgment,” where there is no clear policy in place, are among the most common reasons for employment termination. It’s like the crime called “Disorderly Conduct”:  no one can describe exactly what constitutes “disorderly conduct,” but many people are arrested for it, and convicted of it. That’s because it can mean many different things, depending on the circumstances. It’s the same thing at work: using what the employer views to be poor judgment is surely grounds for employment termination, and the matter comes up so very commonly.
 
Sorry for the disappointing news. Hopefully this will be a lesson learned, and not to be forgotten.

Been accused of misconduct at work? Prepare your defense BEFORE your employer takes action. We offer 10 different Model Letters Responding to Various Allegations of Misconduct at Work. Shows you “What to Say, and How to Say It.”™ To obtain your copy, just [click here.] Delivered by Email – Instantly! 

Best,
Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.

Question: My friend put in a three-month notice at his job. He worked the full three months. Six days later, when he returned to clean out his office he was told he was being charged with embezzlement for using the company gas credit card outside of work.

No charges were pressed, and he paid back what he owed the company, but after he repaid the money he was told that he was fired and lost his right to be paid for his unused personal and vacation days.

Can they fire him after he already quit? 

Mathew  
Rockhill, South Carolina

Answer: Dear Mathew:     

The legal concept of “After-Acquired Cause” is at the heart of your question. Let me explain: 

1. If misconduct is discovered after a person leaves a job, we call this “After-Acquired Cause.” What you describe happened to your friend is an example of “after-acquired cause.” Practically speaking, it is an employee’s bad conduct discovered after he or she has resigned. Legally speaking, it is a legal concept that is accepted by the laws of many states, and is recognized by the courts of South Carolina. What it really means is this: “If, before you quit, we had known you did bad things, we would have fired you. So, we are going to treat you as if we had, indeed, fired you.” 

2. “After-Acquired Cause” does not permit an employer to fire a former employee who has quit, but rather to treat that employee as if he or she had been fired. So, your friend’s employer said, in effect, “Employees who resign are paid for unused personal and vacation days, but employees that are fired are not paid them. Since we would have fired you, had we known of your misconduct, we are going to treat you that way.” Many, but not all, states’ laws support this position by employers and, as I mentioned above, South Carolina is one of them. 

3. If “After-Acquired Cause” is found regarding an employee who was paid severance, some employers will even sue the employee for the return of the severance monies. Yes, it goes that far: a former employee who has collected severance and moved on can find himself or herself facing a demand – or a lawsuit – for the return of the severance monies based on “after-acquired cause.” While there are defenses to such a lawsuit – including that the employer knew of the misconduct, but either condoned it or waived any objection – it is rather far-reaching, and can come up when you least expect it. The lesson is this: as an employee, try to stay as far away from any kind of misconduct as you can; it can come back to haunt you in so many ways.

On the subject of “being fired,” I highly recommend you take just a few minutes to view our free Video on YouTube entitled “Just Been Pinkslipped? The 3 Things You Need to Do.” You can become a savvier employee, and a smarter one, too, in just five or so minutes, if you simply [click here].

Mathew, your question is a good one. Hope my answer has been helpful to your friend.

Consider subscribing: you can learn a little every day, and it’s all for free. 

Hard to explain your last departure? Use our 50 Good Reasons to Explain Your Last Job Departure. Original, creative and so very useful! “What to Say, and How to Say It.™ To obtain your copy, [click here.] Delivered by Email – Instantly!  

Best, 
Al Sklover

© 2011 Alan L. Sklover, All Rights Reserved.